JASPREET SINGH,J. - (1.) By means of the present second appeal the defendants assail the judgment and decree passed by the Court of Additional Civil Judge (Senior Division), Court No.20, Lucknow dated 31.05.2005 whereby the suit of the plaintiff-respondents was decreed and the first appeal under Section 96 CPC filed by the defendant- appellants bearing No.79 of 2005, has been dismissed by means of judgment and decree dated 15.02.2013, affirming the judgment of the trial court.
(2.) This second appeal was admitted by this Court by means of the order dated 21.03.2013 on the following substantial questions of law which are being reproduced here as under:- "1. Whether it was incumbent upon the plaintiffs/respondents to allege and prove their vendors title and having failed to do so the courts below were justified in law in decreeing the suit? 2. Whether the Trial Court has erred in law in not framing necessary issues arising out of the pleadings of the parties more particularly when the suit was barred by limitation" I have heard Sri Mohammad Arif Khan learned Senior Advocate for the appellants and Sri U. K. Srivastava learned counsel for the respondents. Before adverting to the submissions raised by the learned counsel for the parties, facts leading upto this appeal are being noticed first.
(3.) That the plaintiffs who are the respondents before this Court are the legal heirs and successors of one Irshad Ali, who was the original plaintiff. Irshad Ali instituted Regular Civil Suit No.164 of 1987 seeking a decree of injunction and later the suit was amended and a decree of possession was also sought. It was pleaded that one Shahid Ali had purchased the land measuring 7016 sq. ft. from Nagar Mahapalika Lucknow by means of registered sale deed dated 25.10.1978 for the total sale consideration of Rs.8,068.40. It was also pleaded that though the aforesaid sale consideration was deposited by Shahid Ali with the Nagar Mahapalika, Lucknow on 09.07.1965. However, since one Ram Shankar and two others had instituted a suit bearing Regular Suit No.649 of 1965 wherein an interim order was granted, thus the sale deed could not be executed by Nagar Mahapalika in favour of Shahid Ali. Suit No.649 of 1965 was dismissed in default on 06.04.1977, accordingly sale deed thereafter was executed in favour of Shahid Ali on 25.10.1978. Later the suit of 1965 came to be restored and was contested on merits and ultimately was dismissed on merits on 09.03.1984. The plaintiffs of the suit of 1965 thereafter preferred a Regular Civil Appeal No.104 of 1984 which also came to be dismissed on 16.02.1989. In the meantime, Shahid Ali got a map sanctioned in respect of the property purchased, by him from the Nagar Mahapalika, raised construction and it is during that time that the defendants attempted to encroach around 1232 sq. ft. of land. The details of which were shown in the site-plan annexed with the plaint.;